Law Times

Page 8 May 8, 2017 • Law TiMes www.lawtimesnews.com Regulations on e-cigarettes under debate by profession BY MICHAEL MCKIERNAN For Law Times T he federal government's proposed approach to electronic cigarettes has come under fire from campaigners who say tighter regulations on the products will limit their effectiveness as a smoking-cessation tool. Introduced in the Senate in late 2016, bill S-5 would rename the existing law the Tobacco and Vaping Products Act, and it in- cludes restrictions on the adver- tising, marketing and f lavouring of e-cigarette products, designed to keep them out of the hands of minors. The battery-powered devices work by warming a liquid that contains nicotine, allowing it to be inhaled in vapour form, and have grown swiftly in popularity over the last few years. According to the most recent data available from the Canadian Tobacco, Al- cohol and Drugs Survey, about 13 per cent of Canadians over 15 had tried e-cigarettes, up from nine per cent in 2013. For youths between 15 and 19, the propor- tion rose to 26 per cent from 20 per cent over the same period. "We're not saying this has to be a Wild West, unregulated area," says Derek From, a staff lawyer with the Canadian Con- stitution Foundation. "But my concern is when legislation strays into territory where it starts putting up barri- ers to smokers who are already addicted to nicotine and can't stop smoking. As soon as there is a disincentive to switch to a less harmful alternative such as vap- ing, that's when there's a prob- lem. "We should be promoting vaping, not trying to protect people from it," he adds. From says that even the pro- posed name of the new law cre- ates a false impression that the dangers of smoking and vaping are comparable, and he says tra- ditional anti-smoking groups, such as cancer societies, should ease off in their response to the growth of the vaping population. "It makes me wonder if they've become so used to bat- tling the demons like big tobac- co companies that they're just continuing that same fight, not realizing they've already won it. This is a completely different product that needs to be treated differently," From says. Rob Cunningham, a lawyer and senior policy analyst for the Canadian Cancer Society, agrees that e-cigarettes are less harmful than conventional cigarettes, but he says restrictions are still need- ed. In any case, he says S-5 dis- tinguishes between the two and places fewer burdens on manu- facturers of vaping products. "This law will not affect the ability of adult smokers to pur- chase e-cigarettes or to switch to them," he says. "There is no way it should be considered acceptable for a nine- year-old to be sold e-cigarettes. Nicotine is addictive, and we don't want youths to become ad- dicted to it." However, David Sweanor, an adjunct professor with the Uni- versity of Ottawa's Centre for Health Law, Policy and Ethics, says the new law fails to strike the right balance between pre- venting new users of nicotine and helping existing ones. "These restrictions all make sense for dealing with the onset of risky behaviour, but there is another leg to public health: re- ducing risk for people already engaged in that behaviour," he says. From says he would like to see some mechanism for open- ing up vaping to minors who want to switch from cigarettes without fear of violating the law, to ref lect the fact that many cur- rent smokers are underage. He says the harm-reduction failures he sees in S-5 may sup- port a Constitutional challenge under s. 7 of the Charter, espe- cially in light of the Supreme Court of Canada's 2011 decision in Canada (Attorney General) v. PHS Community Services Society, which concerned the federal government's attempt to shut down the Insite safe- injection site in Vancouver. The nation's top court over- ruled the government's denial of a legal exemption granted to the site after finding it ignored evidence that the program had reduced harm associated with intravenous drug use. "In that case, it involved people doing something that was technically illegal. Here, we're talking about a perfectly legal activity that could stop people from smoking, saving thousands of Canadians every year and billions in health-care costs," From says. As cigarette sales continue to shrink in Canada, e-cigarettes are not the only emerging smok- ing product to have caught the eye of the Canadian Cancer So- ciety. The group has called for parts of S-5 to extend to the regulation of herbal water pipe products, and it has supported municipal bylaws around the country ban- ning their use in workplaces or other places where smoking is not allowed. High-profile challenges to the bans have failed in Vancou- ver and Toronto, but the lawyer pioneering the latest attempt in Ottawa says he's confident he can reverse the trend. Lawrence Greenspon acts for a number of shisha bar operators who plan to argue that Ottawa's ban violates ss. 15 and 27 of the Charter by infringing on Arabic and Mid- dle Eastern culture. "When the bylaw was put to- gether, there was no attempt to try and take those cultural rights into account or to accommodate them," Greenspon says. None of Greenspon's clients have been prosecuted since the bylaw came into effect last month, but Cunningham says he hopes the challenge will be defeated in court. "A number of countries in the Middle East are taking action themselves against water pipes," he says. "Historically, smoking ciga- rettes was a big part of the culture in Canada, but times change." LT FOCUS ON Health & Life Sciences Law Rob Cunningham says e-cigarettes are less harmful than conventional cigarettes, but restrictions are still needed. FOCUS TECHNOLOGY LAW SPRING FORUM CHAIRED BY Kirsten Thompson, McCarthy Tétrault LLP Ian Thorburn, Solicitor, City of Toronto St. Andrew's Club & Conference Centre 150 King Street West 16th Floor, Toronto ON, M5H 1J9 MAY 18, 2017 | WWW.IT-CONFERENCE.CA 2017 JOIN US FOR THE Powered by Untitled-3 1 2017-04-28 3:01 PM

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